The draft bill |
14. While reducing the number of instruments
to tackle anti-social behaviour, the draft bill potentially widens
the application and effects of the instruments available in four
ways: a broader definition; a lower standard of proof; increased
sanctions; and increased durations.
||Definition of ASB
||Standard of proof
|Injunction to Prevent Nuisance and Annoyance (IPNA)
||Engagement or the threat of engaging in "conduct capable of causing nuisance or annoyance to any person"
||Balance of probabilities (civil standard)
||Up to 2 years imprisonment or an unlimited fine (contempt of court)
|Criminal Behaviour Order (CBO)
||Engagement in "behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the offender"
||Beyond reasonable doubt (criminal standard) for initial crime, but the CBO does not have to arise out of the facts upon which the conviction was found.
||On summary conviction, up to 6 months imprisonment and/or a fine of up to £5,000. On indictment up to 5 years imprisonment and/or a unlimited fine
||Minimum 1 year for children, 2 years for adults, maximum 3 years for children, indefinite for adults
|Community Protection Notice
||Conduct that is "unreasonable" and "having a detrimental effect, of a persistent and continuing nature, on the quality of life of those in the locality"
||Balance of probabilities (civil standard)
||Fixed penalty notice or prosecution. Fine up to £2,500 for individuals or £20,000 for businesses, or fixed penalty notice up to £100
||Presence or behaviour in that locality that has contributed to or is likely to contribute to harassment, alarm or distress or the occurrence of crime or disorder
||Reasonable grounds for suspicion
||Up to 3 months imprisonment and/or fine of up to £2,500
||Maximum 48 hours|
15. Anti-social behaviour (ASB) is usually defined by its
effect, rather than by the act itself and almost any act could,
in certain circumstances, potentially constitute ASB. Two "thresholds"
have developed for defining when behaviour becomes anti-social
behaviour. ASB was first defined in the Crime and Disorder Act
1998 as behaviour that is "likely to cause harassment, alarm
or distress"the stronger test. For housing-related
issues, the Housing Act 1996 defined ASB as conduct "capable
of causing nuisance or annoyance to any person"
and/or the use of premises
for unlawful purposesthe weaker test.
16. One of the features of anti-social behaviour
interventions that has attracted most criticism is the application
of criminal law sanctions for breach of conditions applied because
of civil wrongs.
Some witnesses, such as the Mayor's Office for Policing and Crime
(MOPAC), believed that all anti-social behaviour should be treated
as criminal, suggesting that ASB should be known as "Quality
of Life Crime".
Martyn Underhill, Police and Crime Commissioner for Dorset,
believed that a criminal injunction would be more effective than
a civil injunction which, he said, "invariably have less
power and tend to be more bureaucratic".
Swindon Borough Council noted that in its experience, the criminal
character of breach of ASBOs gave the police more "ownership"
of an order than with ASBIs, which led to better oversight and
management of cases and enhanced protection for victims.
INJUNCTION TO PREVENT NUISANCE AND
17. The draft bill would further widen the scope
of anti-social behaviour interventions. The weaker, "nuisance
or annoyance" test currently applies for Anti-Social Behaviour
Injunctions (ASBIs), but these are only available to social landlords
and must relate to housing management functions and behaviour
against persons within that neighbourhood.
18. The Injunction to Prevent Nuisance and
Annoyance (IPNA) would be available to
more agencies and uses the weaker threshold. Local authorities,
housing providers, police, Transport for London, the Environment
Agency and the NHS Business Services Authority would all be able
to apply for an IPNA. Youth courts, county courts or the High
Court can grant an injunction against anyone aged 10 or over where
they have engaged or threaten to engage in ASB.
19. We heard a number of suggestions for adding
safeguards to this new, wider definition. Justice pointed out
that a test of "necessity" was required for ASBOs"that
such an order is necessary to protect relevant persons from further
anti-social acts by him"and proposed that the same
protection should be applied to IPNAs.
Others suggested that an assessment of the "harm" caused
would be an appropriate safeguard.
20. The percentage of ASBO applications granted
was already over 95% and this success rate reflected some cases
of ASBOS being granted inappropriately.
Big Brother Watch proposed that a requirement that either "intent
or recklessness" be demonstrated should be attached to the
injunction, noting that "to some people politicians canvassing
would comfortably meet this threshold, while junk mail or spam
text messages would both seem to qualify" under the proposed
Standard of proof
21. The draft bill includes elements that would
further conflate the civil with the criminal. Justice called for
the criminal standard of proof to apply to the IPNA, along with
guarantees of a fair trial in criminal proceedings pursuant to
Article 6 ECHR. It
argued that "the injunctions are ASBOs in all but name but
attract much milder behaviour, without the safeguards that are
currently available before the criminal courts and applying criminal
22. Some witnesses, such as the UK Noise Association,
welcomed the fact that the IPNA required a lower standard of proof
than previous legislation.
However, several witnesses were concerned that this low-threshold
test had the potential to bring much a much wider range of behaviour
under the umbrella of anti-social behaviour, potentially covering
almost any kind of activity, potentially prompting disproportionate
responses to very minor bad behaviour. Camden Council called the
definition "dangerously ambiguous". This was part of
a long-term trend to lower the legal threshold for prosecutions,
which had not resulted in any discernible reduction in levels
23. Big Brother Watch highlighted that in the
draft bill electronic tagging would be available in court proceedings
relying on a civil standard of proof and argued that lowering
the threshold to someone who has never been convicted of a criminal
offence was a significant step.
Mark Dziecielewski was also concerned about tagging, noting that
there was no provision in the bill for holding companies responsible
for administering this kind of schemesuch as G4Sto
account. We share
24. The IPNA grants judicial discretion to either
prohibit the respondent from "doing anything" contained
in the injunction, or to require the respondent to "do anything"
contained in the injunction. This is clearly a broad power and
is not qualified, save for the limited caveats contained within
Section 5. This introduces specific flexibility for religion,
work, school and court orders, but should grant wider judicial
discretion to cover matters such as childcare arrangements or
health needs. In general, specific prohibitions and requirements
should be only those necessary and proportionate to address the
25. Long-lasting ASBOs have been criticised for
making breach "almost inevitable" and without an end
point to work towards, people have "little incentive to comply".
The Criminal Justice Alliance believed the minimum and maximum
duration periods for the CBO would be far longer than necessary.
Justice suggested that IPNAs should last for a maximum of two
years and should be reviewable during that period.
The Social Landlords Crime and Nuisance Group also argued that
there should be provision for IPNAs to be varied by agencies other
than the original applicant, in consultation with the original
26. While breach of an IPNA does not in itself
constitute a criminal offence, as breach of an ASBO on application
does, it is open to a court to punish breach of an IPNA through
criminal contempt of court proceedings. This could ultimately
lead to up to two years' imprisonment or an unlimited fine.
27. Breach of an Anti-Social
Behaviour Order (ASBO) on application was a criminal offence,
but breach of an Injunction to Prevent Nuisance and Annoyance
(IPNA) is not. We welcome the move away from automatic criminalisation
for breach in the case of the IPNA, which is likely to be the
main tool in the new ASB regime.
28. However, breach of this
civil injunction could still ultimately lead to imprisonment.
It is therefore concerning how much easier it is likely to be
to obtain an IPNA than an ASBO. The IPNA is available on a lower
standard of proof than the old ASBO on application, and available
to more agencies than the old Anti-Social Behaviour Injunction
(ASBI). Widening access to the IPNA risks imposing severe restrictions
on more people and additional safeguards must be applied. For
the IPNA, the threshold of "conduct capable of causing nuisance
or annoyance" is far too broad and could be applied even
if there were no actual nuisance or annoyance whatsoever. A proportionality
test and a requirement that either "intent or recklessness"
be demonstrated should be attached to the IPNA, as well as the
requirement "that such an injunction is necessary to protect
relevant persons from further anti-social acts by the respondent".
29. We also believe that there
should be a specific requirement for any individual prohibition
or requirement to be necessary and proportionate for the purposes
of addressing the behaviour that led to the application for an
30. The threshold for a Criminal Behaviour
Order is that the court is satisfied that the offender has
engaged in behaviour that caused or was likely to cause harassment,
alarm or distress to a person and considers that making the order
"will help in preventing the offender from engaging in such
behaviour". This is weaker than the current test in which
the court considers whether the order is "necessary to protect
persons from further anti-social acts by the offender".
It also places a new emphasis on the Order's utility as a means
of helping the offender to address their own behaviour. We
note that there is a mechanism to allow offenders over 16 to shorten
the period a Criminal Behaviour Order applied for if they complete
an approved course. We see no reason why someone younger should
be debarred from this option.
31. The new dispersal power empowers a
constable to direct people to leave an area without the requirement
for prior authorisation that applied to the previous dispersal
powers. The proposed power would be available in the event of
the public being harassed, alarmed or distressed, or the occurrence
of crime and disorder. This is a lower threshold than the necessity
to demonstrate a significant and persistent problem in the locality,
which applies under the current regime.
32. The use of dispersal powers against behaviour
"likely to" contribute to harassment, alarm or distress
or criminal acts was noted as extremely subjective and its application
in the case of any "crime or disorder" could allow it
to be used in the case of crime completely unrelated to ASB.
We note that there is a specific
exemption from dispersal powers for peaceful picketing and recommend
that this be extended to cover all forms of peaceful protest.
33. For dispersal powers, our witnesses pointed
to the removal of key oversight structures built around multi-agency
approval and risk assessment.
The current regime includes an exit strategy, community involvement
and the responsibility not to displace the problem elsewhere.
ACPO noted that the draft bill would only apply the oversight
of police and crime commissioners after the powers were applied,
which could result in disproportionate use of the powers and heightened
tensions in some communities.
Several witnesses believed the maximum penalty of three months
imprisonment for doing so was disproportionate.
34. Public Spaces Protection Orders (PSPO)
could be applied to "all persons, or only to persons in specified
categories or to all persons except those in specified categories"
without taking into account individuals' intent or conduct. Big
Brother Watch warned about a scenario where "a city centre
has a PSPO for under 16s between 9pm and 6am in a specific area
of the town centre, the Bill is drafted as to create a test of
strict liability that would mean a 15 year old returning home
at 10pm would not be able to walk across a town centre from a
train station to a bus station".
It considered the option for an order to be issued for three years
without a requirement for interim approval to be disproportionate,
especially given that breach would be a criminal offence.
The Ramblers Association agreed that this power could be applied
widely to places where the public has the right of recreation,
such as registered common land and registered village greens and
there appeared to be no restriction on the size or locality of
35. Each time successive Governments
have amended the ASB regime, the definition of anti-social behaviour
has grown wider, the standard of proof has fallen lower and the
punishment for breach has toughened. This arms race must end.
We are not convinced that widening the net to open up more kinds
of behaviour to formal intervention will actually help to deal
with the problem at hand. A duty to consult local authorities
must be included in the dispersal power where it is applied for
a period of longer than six hours. Public Spaces Protection Orders
must include a requirement for six monthly interim approval. There
should also be a clear exemption to dispersal powers where there
is a genuine need to travel through the area.
13 As amended by the Anti-social Behaviour Act 2003;
Anti-Social Behaviour Orders (ASBOs) were introduced by section
1 of the Crime and Disorder Act 1998 which came into force on
1 April 1999. That Act has since been amended by the Police Reform
Act 2002, the Anti-social Behaviour Act 2003 and the Serious Organised
Crime and Police Act 2005.
There was concern about inconsistent
drafting in the bill, which refer at various to victims being
"members of the public" and "those in the vicinity".
Kirklees Council noted inconsistent terminology around closure
notices and orders, ranging from "nuisance to members of
the public" (clause 66(1)) to "public nuisance"
(Explanatory Notes, paragraph 55) and "serious nuisance"
((clause 70), Explanatory Notes, paragraph 57). The Council pointed
out that "public nuisance" has a specific common law
meaning and recommended the consistent use of the term "serious
Ev w96 [Justice], paragraph 6 Back
Ev w74 [MOPAC], paragraph 11 Back
Ev w17 [Martyn Underhill] Back
Ev w29 [Swindon Borough Council], paragraph 2.3 Back
Q 158 [Jeremy Browne MP] Back
Ev w96 [Justice], paragraph 16; Section 1(1)(b) CDA Back
Ev w3 [Kent Police] Back
Ev w44 [Criminal Justice Alliance], paragraph 7 Back
Ev w37 [Big Brother Watch], paragraph 8 Back
Ev w96 [Justice], paragraph 26 Back
Ev w96 [Justice], paragraph 12 Back
Ev w1 [UK Noise Association], paragraph 2.1; Ev w1 [Paddy Tipping],
Ev w96 [Justice], paragraph 15; Ev w77 [Mark Dziecielewski]; Ev
w44 [Criminal Justice Alliance]; Ev w37 [Big Brother Watch], paragraph
2; EV w8 [London Borough of Camden], paragraph 2.1 Back
Ev w37 [Big Brother Watch], paragraph 28 Back
Ev w77 [Mark Dziecielewski] Back
Ev 48 [SCYJ], paragraph 11; Ev w44 [Criminal Justice Alliance],
paragraph 9 Back
Ev w44 [Criminal Justice Alliance], paragraph 9 Back
Ev w96 [Justice], paragraph 17 Back
Ev w68 [Social Landlords Crime and Nuisance Group], paragraph
Ev w96 [Justice], paragraph 28 Back
Ev w96 [Justice], paragraph 35 Back
Ev w20 [ACPO], paragraph 18; Ev 46 [CIH], paragraph 2.6 Back
Ev w20 [ACPO], paragraph 17; Ev 42, Ev 45 [LGA], paragraph 2;
Ev w8 [London Borough of Camden], paragraph 2.3; Ev w23 [Leicestershire
Police], paragraph 4.2; Ev w13 [John Dwyer] Back
Ev w20 [ACPO], paragraph 17 Back
Ev w44 [Criminal Justice Alliance], paragraph 11 Back
Ev w37 [Big Brother Watch], paragraph 20 Back
Ev w37 [Big Brother Watch], paragraph 22 Back
Ev w51 [Ramblers and the Open Spaces Society], paragraph 8 Back